SECRETARY, MINISTRY OF WORKS AND ANOTH­ER Vs. MD. YUSUF ALI KHAN

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order dated 3.8.1993 of the High Court Division passed in First Appeal No. 52 of 1990 filed by the respondents. The respondent No. 1 as plaintiff instituted Title suit No. 135 of 1985 in the First Court of Subordinate Judge, Dhaka, for Specific Performance of Contract on the averments, inter alia, that the respondent No. 2, Begum Mariam Iqramullah Khan, executed a deed of agreement in favour of the respondent No.1 on 11.7.1970 for sale of land measuring 10 (ten) kathas 5 (five) chateaus, more or less, situated in the Gulshan Model Town of the Dhaka Improvement Trust for a Consideration of Tk. 90,000/- (Taka Ninety thousand). Out of total consideration money the respondent No.1 paid Tk. 50,000/- (Taka Fifty thousand) as earnest money on 11.7.1970. It was stipulated in the agreement for sale that after obtaining necessary clearance certificate from Dhaka Improvement Trust, She would execute and register a deed of sale in favour of the plaintiff respondent on acceptance of the balance consideration of Tk. 40,000/- (Taka forty thousand). Due to disturbance that followed later on the respondent No. 2 Could not fulfill her part of the contract and in the last part of 1975 she gave an assurance that she would do everything for the registration of deed of sale and accepted further sum of Tk. 20,000/- (Taka twenty thousand) from the plaintiff respondent on 19.12.1975 against receipt singed by her on the back of the agreement for sale. In course of time she took another sum of Tk. 15,000/- (Taka fifteen thousand) from the plaintiff respondent against receipt signed by her on the back of the agreement on 29.11.1979. Thereafter the respondent No. 2 further took an amount of Tk. 2,000/- (Taka two thousand) from the plaintiff respondent against receipt signed by her on the back of the agreement. Thus the defendant respondent altogether received a sum of Tk. 87,000/- (Taka eighty seven thousand) out of Tk. 90,000/- (Taka Ninety Thousand) leaving a balance of Tk. 3,000/- (Taka three thousand) which as actually offered to her at that time. But she flatly refused to accept it and demanded more than what was agreed upon in flagrant violation of the aforesaid deed of agreement. Hence the plaintiff was constrained to institute Title Suit No. 135 of 1985 before the learned Subordinate Judge, Dhaka, for Specific Performance of Contract by directing the defendant No. 1 to execute and register a deed of sale in respect of the suit property in favour of the plaintiff.

(2.) The respondent No. 2 Mrs. Mariyam Iqramullah Khan, filed a written statement stating, inter alia, that the plaintiff agreed to pay a sum of Tk.10, 000/- (Taka Ten thousand) more than the amount mentioned in the agreement on account of increase of price but the plaintiff in violation of his own word refused to pay more than Tk. 3,000/- (Taka Three thousand) and as such it was the plaintiff who was at fault and not the defendant No. 1 as alleged.

(3.) The respondent No. 3, Dhaka Improvement Trust, filed a written statement denying the material allegations contained in the plaint and stating, inter alia, that DIT does not recognize any agreement to transfer DIT lands without prior permission and without paying the transfer fee as per mandatory provisions stipulated in the lease deed.